Linegar v. Rittenhouse

• Decision Date: 30 November 1879
• Citation: Linegar v. Rittenhouse, 94 Ill. 208, 1879 WL 8681 (Ill. 1879)
• Parties: DAVID T. LINEGARv.WOOD RITTENHOUSE.
• Court: Illinois Supreme Court

94 Ill. 208

1879 WL 8681 (Ill.)

DAVID T. LINEGAR

v.WOOD RITTENHOUSE.

Supreme Court of Illinois.

November Term, 1879.

APPEAL from the County Court of Alexander county; the Hon. REUBEN S. YOCUM, Judge, presiding.

Mr. DAVID T. LINEGAR, pro se.

Messrs. MULKEY & LEEK, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

An election was held in the city of Cairo, on the 15th day of April, 1879, for aldermen and other city officers. The parties to this controversy were opposing candidates for alderman in the second ward of the city. When the votes were canvassed, on the 18th day of the month, by the city council, appellant was declared duly elected. The city was, at that time, organized under the general incorporation act governing cities, villages and towns. Appellee filed a petition in the county court to contest the election, and charged that Linegar did not receive a majority of the legal votes cast in the ward at the election, and that petitioner did receive a majority of the legal votes so cast for alderman in that ward; that there were a number of votes counted for Linegar which were not cast for him, and twenty votes were counted for him which were cast by persons not legally entitled to vote at that election in that ward; and that Linegar had not paid a portion of his taxes when he qualified as an alderman.

Appellant demurred to the petition, on the ground that the county court had no jurisdiction to hear or determine the contest, but that it belonged to the city council, which has the sole jurisdiction of such contests.

The court overruled the demurrer, and defendant thereupon answered. A trial was had, and the court found and decreed that Linegar did not receive the majority of all the legal votes cast at the election, and that petitioner did receive a majority of all legal votes cast in that ward at the election.

Defendant thereupon appealed, and has assigned various errors on the record, the first of which is overruling his demurrer to appellee's petition. And this assignment of error raises the question of whether the county court had jurisdiction of the subject matter of this contest.

In the view we take of the case, this is the only question we deem important to consider. The manner of contesting elections is prescribed alone by statute. The jurisdiction, the mode of trial and the whole contest is purely statutory, and is not regulated or governed by the common law. At the common law it was not a judicial proceeding except in a proceeding in the nature of a quo warranto, in which evidence was heard, and the court determined whether the defendant was entitled to the office;--if it was found he was a usurper he was ousted; but it was only by such a proceeding that the courts interfered in such contests. We are therefore to look to the statute, to ascertain where it has lodged the power to try the contest of an election of an alderman to a city council.

The General Assembly has conferred jurisdiction on the county court in cases of contested elections, after providing for the contest of various officers by other courts, by the 98th section of the Election law. It provides that “the county court shall hear and determine contests of election of all county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.”

The city of Cairo is incorporated and acting under the chapter entitled ““Cities, Towns and Villages,” and must be governed by its provisions. The 34th section of that act provides that “the city council shall be judge of the election and qualification of its own members.” Now, what does this language import? Most assuredly that in any contest between persons claiming to be elected an alderman, the council shall be the judge of the contested election, and hear and determine which of the contestants is elected a member of the council. They in no other manner could be the judge of the election of the members of that body. If this be true, then there is another mode provided for the contest of the election of this officer than by the county court, and if so, then by the express terms of the statute it can take no jurisdiction in this case.

The constitution of the United States, and of the various States of the Union, it is believed, have provisions that each house shall be the judge of the election and qualification of its members, and we are aware of no case where it has been held that the courts may determine the election and qualification of the members of either house, where such a constitutional provision exists. On the contrary, it has been the uniform practice for each house of Congress, and of the various States, to hear and decide contested seats. And we can have no doubt that the General Assembly intended to confer on city councils the same power, in cases of contests for seats in the council. It may be urged that because the legislature has not particularly specified the manner in which the council shall proceed, therefore no other provision has been made for the contest for this office. We think the objection has no weight. It has made provision, as we have seen, that it shall be determined by the city council. Suppose the section had in specific terms provided that such contests should be heard and determined by the city council, would any one have doubted that ample provision had been made for such contests? And yet we do not see that in substance and effect these...